Commentary on the Law of Prize and Booty. Hugo Grotius
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of the evil opposed to the particular virtue involved. For example, because of our aversion to a wrathful disposition, we so disregard the stolidity which constitutes the opposite extreme of vice, and which the Greeksa called ἀοργησίαν [lack of rancour], that this quality has not even found a Latin name. Assuredly, too, the consuming greed for gain denoted by the Greek term αἰσχροκερδεία [sordid covetousness], is a vile disease of the spirit, characterized by complete disrespect for law and morality; yet it is possible to sin in contrary fashion, neglecting opportunities to promote one’s own interests, through an anxious and overnice avoidance of things not essentially dishonourable. For the Socratists show that the wise and good man is φῐλοκερδής, that is to say, by no means disregardful of his own advantage. The philosophers likewise deny that justice is οἰκοφθόρον and πτωχοποιόν, “a destroyer of domestic property” and “the author of indigence.”b As Luciliusc has correctly observed, it is indeed
A virtue to be mindful of restraints
And moderation, in the search for gain,
but it is also
A virtue to be able with one’s wealth
To pay one’s debt in full. . . .
Even in this [abstention from greed], we should guard against excess. In other words, let us not imagine that to be vicious which is devoid of vice; and let us not be unjust to ourselves while shunning injustice toward others. The weapon that flies far past the target, misses the mark no less than the weapon that falls short of its aim. Both extremes are blameworthy; both are tainted by error. The fault of those persons whose hearts have grown hardened to every evil deed is perhaps the more shocking and execrable (though one can also conceive of a disposition to [3] take offence at entirely inoffensive things, which may be described as excessively delicate and scrupulous); but impious irreverence for justice and equity is sufficiently revealed through its own infamy because it is repugnant to human nature, whereas there is more need to guard against that other form of vice, the form rooted in a sense of superiority, for the reason that it bears no distinctive mark and therefore easily assumes the aspect of virtue, under which guise it creeps into our hearts. Such is the vice epitomized in the old saying as “hunting for knots in a bulrush” [i.e. seeking for trouble where it does not exist].
Justice consists in taking a middle course.a It is wrong to inflict injury, but it is also wrong to endure injury. The former is, of course, the graver misdeed, but the latter is also to be avoided.
Owing, however, to the fact that we are more frequently impelled toward the first extreme, the precept of regard for others is usually held up to us with excessive zeal, the implication being that we are by nature sufficiently inclined to care for ourselves. Nevertheless, the wise man does not belittle himself, nor does he neglect to avail himself of his own advantages, since no other person will use them more properly.b By the same token, he will repel every injury to himself in so far as law and justice permit him to do so.c Thus the truly good man will be free from μειονεξία, that is to say, from the disposition to accord himself less than his due.
To be sure, such a disposition, as long as the loss resulting from it affects no one save the individual in error, customarily excites more ridicule than reproach and is called folly rather than injustice. But if at any time private loss brings common peril in its train, then indeed, we must combat it with all our force, lest the public welfare be harmfully affected by the mistaken convictions of individual citizens. Under this head should be placed the weakness of those persons who betrayed their own possessions to the enemy because some conscientious scruple prevented them from fighting. We know about the Jewish Sabbathsd and the Greek Moons.e, 2 If there be other men who have not borne sufficiently in mind the famous epic passage, let them remember that:
Εἱ̑ς οἰωνὸς ἄριστος, ἀμύνεσθαι περὶ πάτρης.
There is no act more noble than defence Of one’s own land upon the battlefield.a
I could cite numerous examples of persons who have sinned in this way, but what need is there of such citations? For who doubts but that the Hebrews thought themselves pious and humane because they did not savagely massacre the Midianites and Canaanites?b Who does not know of Saul’s mistaken pity for the conquered king?c Yet on this very score both Saul and the Hebrews were severely rebuked and punished. Moreover, the case with which we are dealing does not even involve this question of slaughter, but turns merely upon the issue of not leaving in the enemy’s possession resources which may be used to destroy the innocent.
Saint Augustine,d that supreme authority on piety and morals, [3′] spoke truly indeed when he declared that it was characteristic of timid men,3 not of the pious, to condemn war because of the ills—such as slaughter and plunder—which follow in its train.
Thus it is needful that these clouds of fear Be vanquished, not by any solar shaft Nor by the day’s bright spear, but by the mien And ordered plan of nature.. . .e
For unless I am mistaken, we may appropriately borrow here the words of the poet Lucretius, since it is solely from that very “mien of nature” and from no other source that one should seek to ascertain how much is owed to others and how much to oneself. Accordingly, after a careful study of the law of war, in which special attention will be given to the precepts governing captured property, we shall find that this whole question has become clear to any person not devoid of ordinary intelligence.
Outline [of the case]
The particular case underlying this discussion is summarized in the following paragraph.
Ships dispatched by the merchants of Holland and Zeeland to the various islands of the Indian Ocean not subject to Portuguese rule had been sailing forth on commercial ventures from as far back as 1595, when our sailors at last prepared to seek vengeance for the slaughter of many of their comrades, as well as for the losses suffered both by themselves and by their allies either in consequence of Portuguese calumnies or at the hands of Portuguese emissaries, through the perfidy of the latter and finally through the open armed violence of that people and their allies. In the year 1602, after several manifestations of hostility on both sides, it so happened that Jacob Heemskerck (Commander of the Amsterdam fleet of eight ships lying in the Strait of Singapore, one of the two straits by which Sumatra4 is separated from the Malay Peninsula) forced a Portuguese vessel to surrender and, disbanding its crew, sailed it home. This vessel, the Catharine by name, a ship of the class known as “caracks,” was laden with merchandise. Quite similar acts had of course been committed by other persons prior to that time, and have also been committed since then; but inasmuch as this particular instance is for many reasons the most widely celebrated, we have chosen it for examination as the [4] episode representative of all such captures, so that on the basis of this investigation judgement may readily be passed in regard to the other cases.
Divisions [of the discussion]
Upon approaching the task indicated, however, I find myself involved in an extremely complex debate: not because our thesis is at all difficult in itself, but because of the differing views of the very persons who dispute it. Some of these critics, guided in a sense by punctilious motives, hesitate to approve of the prize, apparently regarding it as something wrongfully acquired and illegitimate. Others, though they entertain no doubt from the standpoint of legitimacy, seem fearful of bringing some stain upon their reputations by such an act of approval. Again, there may be individuals who have no misgivings regarding the justice of the cause in question and who do not believe that their good name can be impaired thereby, but who nevertheless imagine that this very proposition which at the moment appears to be beneficial and profitable, may eventually result in some still latent loss and harm.
Thus our undertaking requires a combination of all the various forms of discourse customarily employed by orators.a It calls not only for debate as to whether the aforesaid act was right or wrong, to be conducted as if the point were being argued in court, but also for the assumption of the censor’s